1/27 | The three most controversial paragraphs of DOJ Lawyer James A. Baker's 2002 testimony to congress have disappeared.

By Chris Anderson

"The fact that the most controversial portions of the Baker testimony are missing from the published official record naturally invites suspicion," Aftergood wrote. "But there may be a benign explanation. We're trying to find out."

In the last week, revelations that the Bush Administration itself opposed legislative changes to the 1978 FISA statue-- changes that would have lowered the legal bar for warrantless eavesdropping of non-US Citizens inside the United States-- have shaken the foundations of the administration's robust defense of its domestic spying program. Now, it appears that the three most controversial paragraphs of DOJ Lawyer James A. Baker's 2002 testimony to the Senate Committee on Intelligence on the legislation-- paragraphs in which Baker wrote that "the Administration at this time is not prepared to support [changes to FISA]" have disappeared from the official record of the July 2002 hearing.

Blogger and First Amendment lawyer Glen Greenwald ignited a media firestorm earlier in the week when he discovered that "in June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA." Bush the Bush administration itself, according to James A. Baker, a lawyer with the US Department of Justice, opposed the legislation, arguing that the changes were both constitutionally questionable and practically unnecessary. The administration's opposition to S. 2659, documented in a written statement to the Senate Selected Committee on Intelligence, were catalogued online by the Federation of American Scientists, an organization formed in 1945 in order to address "a broad spectrum of national security issues of the nuclear age" and with a "mission to promote humanitarian uses of science and technology."

The implications of the DOJ statement regarding S. 2659 are immense. Writes Greenwald: "the Administration’s excuse from the time the scandal broke and repeated by Gen. Hayden two days ago – that FISA does not provide the necessary "speed and agility" for eavesdropping - was directly contradicted by its claims in June, 2002 that the Patriot Act’s FISA amendments give it all the speed and agility it needed. [...] Here is the critical point: if, as the Administration is now claiming, FISA was inadequate for eavesdropping, why was it telling the Congress in June, 2002 that FISA was perfectly adequate to enable all the eavesdropping it wanted, and even praising Congress for amending FISA (via the Patriot Act) and thereby giving the Administration everything it needed?"

The story, originally broken in the blogosphere, soon reached the pages of the corporate media. As the information sank in, other bloggers began to wonder whether Baker was lyingin his statement to the Senate, or whether he was just out of the NSA loop. At the very least, Greenwald noted, the DOJ's handling of the entire affair was yet another "humiliation of congress."

The story seemed to be reaching stasis up by mid-week. But on Thursday, both Tim Grieve of Salon.com and the Washington Post noticed a further discrepancy. Wrote Post reporters Dan Eggen and Walter Pincus: "confusion over the issue deepened further yesterday after officials discovered two versions of a Justice statement on the legislation. One, which was posted on the Federation of American Scientists Web site and quoted in media reports, noted possible constitutional concerns. The other, held by the Senate intelligence committee, did not include that issue. Officials could not explain the disparity."

Steven Aftergood directs the FAS Project on Government Secrecy which works to promote public access to government information. On Thursday, Aftergood noted on the FAS website that: "the version of this [Baker's] Statement that was published by the Senate Select Committee on Intelligence does not include several key paragraphs of Mr. Baker's discussion of Senator DeWine's bill S. 2659 that are presented below. The reason for this discrepancy is currently unknown, but it appears that two versions of the Statement were prepared and circulated at the July 31, 2002 hearing."

Asked via email if it was common practice for multiple and differing copies of prepared statements to be prepared and circulated at a congressional hearing, Aftergood's response was simple. "No," he wrote. Asked if FAS had ever encountered a "disappearance situation" similar to this one, Aftergood again responded in the negative. "Nowadays," Aftergood added in a email Friday afternoon, "most testimony and transcripts are posted on Committee or agency web sites and we mirror items that are of interest to us. In the past, we would attend hearings or request hard copies of prepared testimony from the Committee following the hearing. I believe that is what I did in the case of the 2002 hearing on FISA."

"The fact that the most controversial portions of the Baker testimony are missing from the published official record naturally invites suspicion," Aftergood continued. "But there may be a benign explanation. We're trying to find out." Aftergood further noted that the story was still developing and that new information might emerge soon.

Below is the longer version of the statement of James A. Baker to the Senate Select Committee on Intelligence on July 31, 2002-- [italicized portions in brackets] do not appear on the official statement on the Senate Intelligence Committee website:

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S. 2659 as introduced would, for FISA coverage of non-U.S. persons, amend Sections 105(a)(3) and 304(a)(3) of FISA, 50 U.S.C. secs. 1805(a)(3) and 1824(a)(3), to change the standard required for FISA surveillance or search from "probable cause" to "reasonable suspicion." Under S. 2659, in other words, the court could authorize electronic surveillance or physical search of a non-U.S. person upon facts constituting "reasonable suspicions" that (1) the non-U. S. person targeted is an agent of a foreign power, and (2) the facilities, places, premises, or property against which electronic surveillance or search is to be directed is used or about to be used by the target. Conforming changes would be made elsewhere in the sections of FISA. Authority for electronic surveillance or physical search of U.S. persons would remain at the current "probable cause" standard.

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, [the Administration at this time is not prepared to support it]the Administration is still in the process of evaluating this legislation.

[The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.]

[The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.]

[I assure [you] that we are moving expeditiously to answer these questions, which, of course, require input from agencies other than the Department of Justice that could be affected by the legislation.]

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